Snyder v. Ash

LANDON, J. The mortgage in terms covers the entire premises, without reservation or exception, and therefore covers the wife’s estate in the undivided two-thirds thereof. 1 Rev. St. p. 748, § 1. Cases like Power v. Lester, 23 N. Y. 535, and Gillig v. Maass, 28 N. Y. 191, are to the effect that, in respect of the husband’s lands, the joinder of the wife with him in the mortgage thereof only operates to release her' contingent right of dower. Such was the effect here in respect of the husband’s portion of the mortgaged lands. But the mortgage also covers the wife’s portion of the premises. This portion the husband could not incumber, but she could, and did. The mortgage has the effect which its terms express. There is no ambiguity in it. The parol evidence offered as to what the mortgagee said as to the effect of her execution of it contradicts its terms, and was therefore properly excluded. Hutchins v. Hutchins, 98 N. Y. 56. Even if admitted, it would fall short of proving that she was misled thereby. If regarded as a misrepresentation as to its legal effect, then it was a mistake in law; and in order to relieve the wife from its consequences, and thrust them upon the mortgagee, the mortgagee must be shown guilty of some lack of good faith inducing [774] the mistake. Haviland v. Willets, 141 N. Y. 50, 35 N. E. 958; Berry v. Insurance Co., 132 N. Y. 49, 30 N. E. 254. There was no offer to show this. The judgment must be affirmed, with costs. All concur except HERKÍCK, J., dissenting.